*Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

February 8, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 06-40932

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY LYNN MALLOY,

Defendant-Appellant.

____________________________________________________

On Appeal from the United States District Court for the Eastern

District of Texas, Beaumont Division, 

No. 1:05-CR-33-2

_____________________________________________________

Before SMITH, BARKSDALE, AND DENNIS, Circuit Judges.

PER CURIAM:*

Having entered a conditional guilty plea, defendant Gary

Malloy appeals the district court’s denial of his motion to

suppress evidence. Because Malloy’s claim is squarely foreclosed

by Supreme Court and Fifth Circuit precedent, we AFFIRM Malloy’s

conviction.

I.

Between October 2004 and February 2005, United States

Immigration and Customs Enforcement (“ICE”) agents conducted an

investigation into certain suspected drug trafficking activities in
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the Houston, Texas area. As a result of information gathered

during this investigation, the agents believed narcotics were being

transported in a white pickup truck, outfitted with a welding

machine, that the agents observed departing a targeted residence on

the morning of February 16, 2005. ICE agents contacted Sergeant

Tracy Sorge of the Orange County, Texas sheriff’s department and

asked him to attempt to stop the vehicle, identify its occupants,

and investigate the matter at his discretion.

Sorge saw the welding truck traveling on Interstate 10 in

Orange County at about 6:45 a.m. He followed the vehicle for a

short distance, and, after observing three traffic violations, he

stopped the vehicle. Sorge then asked the driver of the truck,

Marcos Santana, to step to the rear of the vehicle. As he issued

Santana a warning citation, Sorge asked Santana a number of

questions. Santana appeared visibly nervous, and he gave

inconsistent and contradictory answers to a number of Sorge’s

questions. 

Sorge then approached the passenger side of the vehicle to

speak with the passenger, defendant Gary Malloy, and to obtain the

registration and insurance information for the vehicle. Malloy

provided Sorge with the registration and insurance papers, which

indicated that the vehicle was registered to Malloy. Sorge

proceeded to ask Malloy a number of questions. Some of Malloy’s

responses were inconsistent with statements made earlier by

Santana, and Malloy changed his story on at least one occasion
1Sorge, who had worked narcotics for six years, had completed

400 hours of specialized drug interdiction training. Sorge had

also obtained a certificate in welding from the Lamar Institute of

Technology in 2002.

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during the course of Sorge’s questioning. Like Santana, Malloy

appeared to be extremely nervous.

Sorge next asked Malloy if he would consent to a search of the

vehicle. Malloy agreed. While searching the bed of the truck,

Sorge found two oxygen tanks, ostensibly for use in welding, that

appeared suspicious to him.1 Sorge noticed that there was fresh

paint sprayed on the caps of the tanks; that the upper portion of

the tanks appeared smooth, while the bottom portion appeared to be

pitted from several layers of paint; that the valves on the tanks

had been installed only recently; that the tanks did not contain

sufficient pressure to be used for welding; that the gas from the

tanks smelled like compressed air, not the pure oxygen that would

be used in welding; that the weight of the tanks was concentrated

at the bottom, rather than distributed evenly throughout the tanks;

and that the outside of one of the tanks was covered in Bondo, an

automotive body filler. Based on these observations, Sorge came to

believe that the oxygen tanks contained hidden compartments that

might house contraband.

Sorge then handcuffed Malloy and Santana and read them the

Miranda warnings. He also obtained Malloy’s consent to x-ray the
2It is undisputed that the oxygen tanks were never, in fact,

x-rayed.

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oxygen tanks.2 Sorge then scraped away some of the Bondo from the

tanks and discovered that there were welded seams in the tanks.

Another officer transported Santana and Malloy to the Orange County

jail, and Sorge took the oxygen tanks to a mechanic’s shop. Once

there, Sorge confirmed that each tank contained a welded metal

diaphragm that divided the tank into two compartments. Sorge then

cut the tanks open using a metal chop saw and found 13 square,

kilogram-sized packages of cocaine in the bottom compartment of

each tank.

II.

On March 3, 2006, Malloy was charged in a two-count indictment

with conspiracy to possess with the intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and

possession with the intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 841(a)(1). The government

filed a superseding indictment on April 6, 2005. The superseding

indictment added a notice of intent to seek criminal forfeiture.

Malloy moved to suppress the evidence obtained from the search of

his vehicle on the ground that the search violated his Fourth

Amendment rights. Malloy argued that (i) the search of the oxygen

tanks exceeded the scope of his consent to the search; and (ii) the

search of the oxygen tanks could not be justified under the
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“automobile exception” to the Fourth Amendment’s warrant

requirement because the police had complete control over the

vehicle and its contents at the time that the oxygen tanks were cut

open.

The magistrate judge conducted a hearing on Malloy’s motion to

suppress. On December 5, 2005, the magistrate judge issued a

report and recommendation stating that the motion to suppress

should be denied. Malloy filed objections to the report and

recommendation, but on December 27, 2005, the district court

adopted the magistrate judge’s recommendation and denied the motion

to suppress.

On January 17, 2006, Malloy entered a conditional guilty plea

to count two of the superseding indictment under Federal Rule of

Criminal Procedure 11(a)(2). In his plea, Malloy reserved the

right to appeal the district court’s ruling on his motion to

suppress. On May 24, 2006, the district court sentenced Malloy to

36 months in prison, to be followed by three years on supervised

release.

III.

On an appeal of a motion to suppress evidence, this court

reviews the district court’s legal conclusions de novo and its

findings of fact for clear error. E.g., United States v. Mays, 466

F.3d 335, 342 (5th Cir. 2006); United States v. Jordan, 232 F.3d

447, 338 (5th Cir. 2000). We consider the evidence in the light
3See, e.g., Chambers v. Maroney, 399 U.S. 42, 51 (1970)

(“[T]he circumstances that furnish probable cause to search a

particular auto for particular articles are most often

unforeseeable; moreover, the opportunity to search is fleeting

since a car is readily movable.”).

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most favorable to the party who prevailed in the district court.

Jordan, 232 F.3d at 448.

IV.

The sole issue before this court on appeal is whether Sorge’s

warrantless search of the oxygen tanks was justified under the

“automobile exception” to the Fourth Amendment’s warrant

requirement. Malloy does not challenge on appeal either the

legality of Sorge’s initial stop of the vehicle or the district

court’s conclusion that Sorge had probable cause to believe that

the oxygen tanks contained contraband. Rather, Malloy argues only

that the automobile exception to the warrant requirement, which has

its roots in the inherent mobility of automobiles,3 does not permit

the warrantless search of a container located in the vehicle once

the police exercise total control over the vehicle and its

contents. In such situations, Malloy argues, the justification for

the automobile exception no longer applies, and the police should

be required to obtain a warrant.

Both the Supreme Court and this court have, however,

repeatedly held that the automobile exception can justify a

warrantless vehicle search even if the police exercise complete

control over the vehicle and do not conduct the search immediately.
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See United States v. Johns, 469 U.S. 478, 484 (1985) (“There is no

requirement that the warrantless search of a vehicle occur

contemporaneously with its lawful seizure.”); Michigan v. Thomas,

458 U.S. 258, 260 (1982) (“It is thus clear that the justification

to conduct . . . a warrantless search does not vanish once the car

has been immobilized . . . .”); United States v. Ross, 456 U.S.

798, 807 n.9 (1982) (“[I]f an immediate search on the street is

permissible without a warrant, a search soon thereafter at the

police station is permissible if the vehicle is impounded.”);

United States v. McSween, 53 F.3d 684, 689 (5th Cir. 1995) (“If

probable cause justified a warrantless search on the roadside, it

likewise justified one at the station after the car was

impounded.”); United States v. Harrison, 918 F.2d 469, 473 (5th

Cir. 1990) (“The search need not be done immediately and if begun

at the scene can be continued later at another location.”). In

addition, it is immaterial that the evidence Malloy seeks to

suppress was located in a separate container within the vehicle.

See California v. Acevedo, 500 U.S. 565, 579-80 (1991). Because it

is undisputed that Sorge had probable cause to search the oxygen

tanks that he found in Malloy’s vehicle, it was permissible for him

to conclude the search away from the scene after a brief delay.

Accordingly, we AFFIRM the district court’s ruling and Malloy’s

conviction.